In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”). Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

ARIZONA BORDERS AND CITIZEN SAFETY… (Photo credit: roberthuffstutter)

In this case, Matter of Campton, the Court decides that:

ARRIVAL AS A B-2 VISITOR FOR PLEASURE CAN PRECLUDE “AOS” IF VISITOR ENTERED WITH THE INTENTION TO PURSUE HIS CALLING AS A CREWMAN ABOARD A SHIP.

The Court took its holdings from Quintero-Correa and Rebelo (see previous MIA article) regarding the coincidental seaman, and held that despite those rulings, an alien can be denied adjustment of status (“AOS”) if he first entered the U.S. as a B-2 nonimmigrant visitor for pleasure, but had the “intent” to “pursue his calling as a crewman aboard a ship.”

Example for a Visa Run (Laos). Entrance and departure on the same day. (Photo credit: Wikipedia)

CAMPTON’S BACKGROUND TO THE U.S.

Campton, the alien that brought the case, had last entered the U.S. by automobile with a nonimmigrant visitor’s visa after a three-month visit to Canada. However, Campton had been a crewman for the prior 12 years and was coming to the U.S. for the purpose of continuing his crewman’s occupation.

MATTER OF REBELO DISTINGUISHED

The Court held that Campton was not eligible for adjustment of status, and the Court distinguished Matter of Rebelo, on the ground that in Rebelo there had been a showing that Rebelo was not entering in pursuit of his calling as a seaman.

These cases, from Quintero-Correa to Rebelo to Campton, are not entirely consistent. The Courts have seriously questioned some of the discussion in Rebelo, in particular. However, the above cases all deal with aliens who were admitted to the U.S. in some nonimmigrant status, and one may take away the idea that if an alien enters with a B-2 visa, and truly has no intent to be involved in any capacity as a crewman, he may still later seek an Adjustment of Status.

Visas – Info on Each Visa Available

Andrew John Bernhard, Esq.

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